"When fascism comes to America, it will be wrapped in the flag and carrying the cross."
-- Sinclair Lewis

Thursday, June 30, 2011

For once, the Supreme Court doesn't back up Justice Nino in saying "f**k off" to victims of corporate depredation

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Justice Nino speaking in Milwaukee in September 2010

"Robert Peck, the Washington-based lawyer representing the Louisiana smokers at the Supreme Court, recalled thinking Scalia had made unwarranted assumptions about the case. 'I was really rather surprised he would issue the stay,' Peck said of Scalia's order blocking the judgment from taking effect."

As we know, the Supreme Court hardly ever has to explain itself about lots of things, and one of the things it especially doesn't have to explain in any way, shape, or form is its decision not to grant certiorari -- i.e., not to hear a case that a petitioner would like it to.

Since we know that it takes four justices to get a case on the Court docket, when the verdict is, "Sorry, babe," we can infer that there weren't four justices willing to listen, bearing in mind, of course, that justices aren't committing themselves to any outcome with such willingness; it simply indicates that they've got some interest in hearing the case in full. But on any given case -- among the large number the Court is petitioned to hear -- we don't know who was on which side or what anyone's thinking was. All we know is that if cert is granted, there were four justices saying OK, and if not, there weren't.

Every now and then, though, even without any more information, the decision not to hear a case tells us that something went on in the inner sanctum, and today the AP's Mark Sherman sifted out this nugget from the batch of docket matters released Monday, the final day of the Court's current term -- while most Court-watchers were focused on the final, "best for last" rulings of the term: striking down the Arizona election-law provision providing additional funds for candidates accepting public financing who face free-spending non-publicly-funded candidates ("free speech! free speech!", and the thumbs-down on California's attempt to bar sales of especially violent video games to minors ("free speech! free speech!").

a state court order requiring the tobacco companies [Philip Morris, Brown and Williamson, R. J. Reynolds, and Lorillard] to pay $270 million to start a smoking cessation program in Louisiana. The payment was ordered as part of a class-action lawsuit that Louisiana smokers filed in 1996. They won a jury verdict seven years ago. . . .

Not only did the justices say Monday they were leaving the state court order in place, there were not even four votes to hear the companies' full appeal. And the court provided no explanation of its action.

Again, it's not clear to me why Sherman is so agog about these last bits. When the High Court chooses not to hear a case, it is by definition leaving the ruling of the last court, federal or state, in place, and it never has to explain, and usually doesn't.

What's interesting here, though, is that in apparently extraordinary circumstances one justice had written officially that he thought it "reasonably probable that four justices will vote to grant certiorari," and went so far as to describe it as "significantly possible that the judgment below will be reversed." If I give you, say, four guesses, I'm sure you can identify the justice in question, but if you think a moment, I'll bet you can get it in one.

Think: Who's the most overbearingly self-absorbed blowhard on the bench? Right you are! It's Nino baby -- none other than Justice Antonin Scalia.

Now our Nino wasn't just flapping his gums for the fun of it. The case he was ruling on came before him as the Supreme Court's judicial overseer for the U.S. Fifth Circuit, which includes Louisiana. The ruling he issued in September was in response to a petition by the tobacco companies to delay making any payments while their appeal to the Supreme Court was still pending. (Say, isn't that Doonesbury's Mr. Butts? I can't think what he would be doing here, except that he does have a habit of turning up in places where he isn't wanted.)

Where it gets interesting is that, as Mark Sherman expressed it in his AP lead, Justice Nino "exercised a rarely used power," explaining later: "On a court that almost always acts as a group, Scalia singlehandedly blocked" the state court order, on the grounds we've already noted, that granting of cert seemed to him "reasonably probable" and that he thought it "significantly possible that the judgment below will be reversed."

From the AP report:

Justices have the authority to act on their own to issue an order that blocks another court’s decision from taking effect, often in cases that are being appealed to the high court.

But in recent years they rarely have done so. The last time a justice acted alone in similar circumstances was in 2006, when Justice Anthony Kennedy blocked a court order to remove a giant cross from a public park in San Diego while the matter remained under appeal. The cross case still is working its way through the courts.

In fact, Robert Peck, "the Washington-based lawyer representing the Louisiana smokers at the Supreme Court," recalled being "rather surprised [Scalia] would issue the stay." Thomas Goldstein, "a Washington lawyer and close observer of the court," described this as "a very rare and unusually assertive ruling by a single justice." Goldstein observed that "the later briefing in the case seems to have persuaded the court, and maybe even Scalia himself, not to get involved.”

Again, we have no way of knowing who thought what in the decision not to grant certiorari, just that there weren't four justices willing to do so. But we do know what Justice Nino was thinking in September. He was gleefully applying the legal doctrine of Screw the Whole Effing Lot o' Youse Bums which has come to govern most of the thinking of the radical right-wing Supreme Court majority in cases involving Big Business vs. the people it screws.

Mark Sherman puts it more tactfully: "Scalia noted national concern over the abuse of class-action lawsuits in state courts and raised concerns about the companies’ legal rights," worrying specifically "that without delaying payment, the companies might not be able to recover all their money if they ended up winning in the Supreme Court."

Even our AP scribe gets in a shot, though:

A Louisiana appeals court had a different take on the subject of delay, noting that the plaintiffs are aging and dying at a significant rate.

One of the two named plaintiffs, Gloria Scott, was diagnosed with lung cancer in 2000 and died in 2006.

Sherman notes prominently that Justice Nino is a smoker, and while one might wonder whether that affected his thinking on the case, I'm not persuaded. Hasn't Nino been pretty relentlessly consistent over his quarter-century on the Court (and four years before that on the D.C. Circuit Court of Appeals) in his view that corporations, especially big ones, have the right of free something-or-other to do any damn thing they want to us? And if we don't like it, the Roberts Court has reserved for us the legal right to . . . uh, well, to lump it.